A well-known cliché came to life in 2012 when “[t]he pope’s butler was convicted… of stealing the pontiff’s private documents and leaking them to a journalist….” This paper was prompted by his lawyer’s unsuccessfully arguing that taking “only photocopies, not original documents” should not be criminal.

It therefore considers bases for prosecuting the theft of such intangible interests under U.S. federal and state law.

Because the property in question had been fixed, federal jurisdiction is exclusive. Moreover, the seminal Dowling case determines that penal jurisdiction under the Copyright Act is the exclusive basis for prosecuting theft of tangible property — at least in the absence of another subject-specific statute.

The paper then turns to Aleynikov, a recent Second Circuit opinion. It likewise finds, barring theft of tangible property, only subject-specific prosecution possible for theft of valuable compute code. The code qualified as a trade secret, so the 1996 Economic Espionage Act might have served. A key requirement of that act was found not to be satisfied, however.

Roughly half of the paper considers prosecution under state statutes. Copyright law is off the table, but prosecution for theft of other intangibles remains. Some penal statutes name trade secrets as subject property; others name intangibles generally; and many others name neither. Were a case such as the one involving the Vatican papers to be tried, a variety of problems would be encountered under each type of statute. The paper uses three cases to illustrate some of those problems.

Looking well beyond the papal papers, the paper ultimately suggests that something akin to a penal version of the Uniform Trade Secret Act might bring more resources to bear on increasingly disruptive criminal activities.